Findley v Morand - [2014] QSC 297

SUPREME COURT OF QUEENSLAND

CITATION:

Findley v Morand & Ors [2014] QSC 297

PARTIES:

JOSHUA FINDLEY
(applicant)
v
ANTHONY MORAND
(first respondent)
and
NANCY MORAND
(second respondent)
and
E MORAND PTY LTD
(third respondent)

FILE NO/S:

BS9578/14

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

9 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2014

JUDGE:

Alan Wilson J

ORDERS:

The order of the court is that:

1. The period of limitation for the applicant’s action for defamation in respect of the TICA publication of 25 January 2012 be extended under s 32A of the Limitation of Actions Act 1974 (Qld) such as to permit the applicant to file proceedings for defamation on or before 25 January 2015;

2. The costs of and incidental to this application be reserved to the judge who hears and determines any defamation proceeding brought pursuant to this order, or earlier order.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – OTHER CAUSES OF ACTION AND MATTERS – where the applicant had previously rented a property owned by the respondents – where the applicant alleges that he discovered in June 2014 that the respondents had posted two entries on tenancy database TICA about the applicant in March 2011 and January 2012 – where the applicant applied to QCAT for the entries to be removed, and an order to that effect was made in July 2014 – where the applicant wishes to commence proceedings for defamation against the respondents, but where the limitation period set by s 10AA of the Limitation of Actions Act 1974 (Qld) has passed – where the applicant seeks an extension of that limitation period under s 32A of the Limitation of Actions Act 1974 (Qld) – whether an extension of time should be granted

Civil Proceedings Act 2011 (Qld), s 25
Defamation Act 2005 (Qld), s 21, Sch 5
Limitation of Actions Act 1974 (Qld), s 10AA, s 32A
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 459, s 460, s 464, Ch 9
Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld)

Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Arab Monetary Fund v Hashim (No 4) [1992] 4 All ER 860, cited
Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498, cited
Jamieson v Chiropractic Board of Australia [2011] QCA 56, cited
Noonan v MacLennan [2010] 2 Qd R 537, cited
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, cited
Rayney v State of Western Australia (No 3) [2010] WASC 83, cited

COUNSEL:

The applicant Joshua Findley appeared on his own behalf
The respondents Anthony Morand and Nancy Morand appeared on their own behalves, and for E Morand Pty Ltd

SOLICITORS:

The applicant Joshua Findley represented himself
The respondents Anthony Morand and Nancy Morand represented themselves, and E Morand Pty Ltd

Wilson J: The Queensland Residential Tenancies and Rooming Accommodation Act 2008 anticipates the creation, or expects the existence of, tenancy databases containing personal information about residential…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Findley v Morand

Details

AGLC: Findley v Morand [2014] QSC 297
Case: [2014] QSC 297
Decision Date: 9 December 2014

CaseChat Overview and Summary

In Findley v Morand, the applicant, Findley, sought to extend the limitation period for initiating a defamation claim against the respondents, Morand, who had previously owned and rented out a property to Findley. Findley alleged that the respondents had posted defamatory entries about him on a tenancy database, TICA, in 2011 and 2012, which he only became aware of in 2014. Following Findley's application to the Queensland Civil and Administrative Tribunal (QCAT), an order was made in July 2014 to remove the entries. Findley now wished to commence defamation proceedings against the respondents, but the limitation period for such actions had expired under section 10AA of the Limitation of Actions Act 1974 (Qld). Findley sought an extension of the limitation period under section 32A of the same Act.

The primary legal issue before the court was whether the limitation period for Findley's defamation claim should be extended under section 32A of the Limitation of Actions Act 1974 (Qld). The court needed to consider whether the circumstances warranted an extension given that Findley had not discovered the defamatory entries until several years after they were posted. The court assessed the reasons for the delay, the diligence exercised by Findley in pursuing the matter, and the overall fairness and equity of extending the limitation period in this instance.

In determining the application, the court found that the circumstances justified an extension of the limitation period. The court accepted that Findley had not been aware of the defamatory entries until 2014 and had acted promptly upon discovering them. The court concluded that it was equitable to extend the limitation period to allow Findley to bring his defamation claim. Consequently, the court granted an extension under section 32A of the Limitation of Actions Act 1974 (Qld), permitting Findley to file proceedings for defamation by 25 January 2015.

The court also ordered that the costs of and incidental to the application be reserved for the judge who would hear and determine any defamation proceedings brought pursuant to this order. This decision ensures that the matter of costs is addressed in the context of the broader defamation litigation, should it proceed.

Orders

Orders of the court

The order of the court is that:

1. The period of limitation for the applicant’s action for defamation in respect of the TICA publication of 25 January 2012 be extended under s 32A of the Limitation of Actions Act 1974 (Qld) such as to permit the applicant to file proceedings for defamation on or before 25 January 2015;

2. The costs of and incidental to this application be reserved to the judge who hears and determines any defamation proceeding brought pursuant to this order, or earlier order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Findley v Morand & Ors [2014] QSC 297
PARTIES:	JOSHUA FINDLEY (applicant) v ANTHONY MORAND (first respondent) and NANCY MORAND (second respondent) and E MORAND PTY LTD (third respondent)
FILE NO/S:	BS9578/14
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	9 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	16 October 2014
JUDGE:	Alan Wilson J
ORDERS:	The order of the court is that: 1. The period of limitation for the applicant’s action for defamation in respect of the TICA publication of 25 January 2012 be extended *under s 32A of the Limitation of Actions Act* 1974 (Qld) such as to permit the applicant to file proceedings for defamation on or before 25 January 2015; 2. The costs of and incidental to this application be reserved to the judge who hears and determines any defamation proceeding brought pursuant to this order, or earlier order.**
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – OTHER CAUSES OF ACTION AND MATTERS – where the applicant had previously rented a property owned by the respondents – where the applicant alleges that he discovered in June 2014 that the respondents had posted two entries on tenancy database TICA about the applicant in March 2011 and January 2012 – where the applicant applied to QCAT for the entries to be removed, and an order to that effect was made in July 2014 – where the applicant wishes to commence proceedings for defamation against the respondents, but where the limitation period set by s 10AA of the Limitation of Actions Act 1974 (Qld) has passed – where the applicant seeks an extension of that limitation period under s 32A of the Limitation of Actions Act 1974 (Qld) – whether an extension of time should be granted Civil Proceedings Act 2011 (Qld), s 25 Defamation Act 2005 (Qld), s 21, Sch 5 Limitation of Actions Act 1974 (Qld), s 10AA, s 32A Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 459, s 460, s 464, Ch 9 Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld) Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Arab Monetary Fund v Hashim (No 4) [1992] 4 All ER 860, cited Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498, cited Jamieson v Chiropractic Board of Australia [2011] QCA 56, cited Noonan v MacLennan [2010] 2 Qd R 537, cited Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, cited Rayney v State of Western Australia (No 3) [2010] WASC 83, cited
COUNSEL:	The applicant Joshua Findley appeared on his own behalf The respondents Anthony Morand and Nancy Morand appeared on their own behalves, and for E Morand Pty Ltd
SOLICITORS:	The applicant Joshua Findley represented himself The respondents Anthony Morand and Nancy Morand represented themselves, and E Morand Pty Ltd